ex4-3.htm


    Exhibit
4.3

     

    Placement
Agent Warrant

    


    Warrant
No.
PA-__                                                                                  

                                                  ______
__, 2008

     

    THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES
LAWS.  THIS WARRANT AND ANY OF SUCH SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER SAID ACT AND ALL OTHER APPLICABLE SECURITIES LAWS UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.

    


    WARRANT
TO PURCHASE SHARES OF

    COMMON
STOCK OF OMNIMMUNE HOLDINGS INC.

     

    1.           Grant of
Warrant.  Omnimmune Holdings, Inc., a Delaware corporation (the
“Company”), hereby agrees that New Castle Financial Services LLC (the “Holder”)
is entitled, subject to the provisions of this Warrant, to purchase from the
Company, up to [____] ([______]) shares of fully paid and non-assessable shares
of Common Stock (the “Warrant Stock”) at a price as provided in Section 4 below
(the “Exercise Price”). The term “Holder” as used herein shall include any
transferee to whom this Warrant has been transferred in accordance with this
Warrant.

     

    The term
“Common Stock” means the Common Stock, $0.0001 value per share, of the Company
as constituted on the date hereof, together with any other equity securities
that may be issued by the Company in substitution therefor.  The
number of shares of Common Stock to be received upon the exercise of this
Warrant may be adjusted from time to time as hereinafter set
forth.  The term “Company” means and includes the Company as well as
any successor corporation resulting from the merger or consolidation of such
corporation with another corporation.

     

    2.           Exercise of
Warrant.  Subject to the limitations set forth in Section 7,
this Warrant may be exercised, as to the whole or any lesser number of whole
shares of Warrant Stock, at any time during the period commencing six (6) months
after the issue date set forth herein above, and expiring at 5:00 p.m., Houston,
Texas time, upon and coincident with the fifth (5th)
anniversary of the date of issuance (such date referred to herein as the
“Expiration Date”). This Warrant shall
expire if not properly exercised in full by the Expiration Date.

     

    The
Holder may exercise this Warrant by presentation and surrender of this Warrant
to the Company prior to the Expiration Date at its principal office in Houston,
Texas, or at the office of its stock transfer agent, if any, with the Notice of
Exercise attached hereto duly executed and accompanied by payment (either in
cash or by certified or official bank check, payable to the order of the
Company) of the aggregate Exercise Price for the number of shares of Warrant
Stock specified in such form.

     

    In lieu
of the payment of the Exercise Price, Holder may require the Company to convert
this Warrant, in whole or in part, into shares of Common Stock as provided
herein (“cashless exercise”).  In order to require the cashless
exercise of this Warrant, the Holder shall surrender to the Company this Warrant
with the Notice of Exercise at the end hereof duly completed and
executed.  Upon such cashless exercise, the Company shall deliver to
Holder (without payment by Holder of any of the Exercise Price) that number of
shares of Common Stock equal to the quotient obtained by dividing (x) the value
of this Warrant (or portion thereof if being exercised in part) at the time of
the cashless exercise (determined by subtracting the aggregate Exercise Price of
the shares of Warrant Stock as to which the Warrant is being exercised in effect
immediately prior to the cashless exercise from the aggregate Current Market
Price (as defined below) of the shares of Warrant Stock as to which the Warrant
is being exercised immediately prior to the cashless exercise) by (y) the
Current Market Price of one share of Common Stock immediately prior to the
cashless exercise.

     

    For the
purposes of any computation hereunder, the term “Current Market Price” per share
of Common Stock on any date shall be deemed to be the average of the daily
closing prices for the five consecutive trading days immediately preceding the
date in question.  The closing price for each day shall be the last
reported sales price or, in case no such reported sale takes place on such day,
the closing bid price, in either case on the principal national securities
exchange on which the Common Stock is listed or admitted to trading or, if the
Common Stock is not listed or admitted to trading on any national securities
exchange, the highest reported bid price for the Common Stock as furnished by
the National Association of Securities Dealers, Inc. through Nasdaq or a similar
organization if Nasdaq is no longer reporting such information.  If on
any such date the Common Stock is not listed or admitted to trading on any
national securities exchange and is not quoted by Nasdaq or any similar
organization, the fair value of a share of Common Stock on such date, as
determined in good faith by the board of directors of the Company, whose
determination shall be conclusive absent manifest error, shall be
used.

     

    Upon
receipt by the Company of this Warrant, together with payment in the amount of
the Exercise Price or
a notice of cashless exercise as set forth above, at its principal office in
Houston, Texas, or by the stock transfer agent of the Company at such agent’s
office, in proper form for exercise, the Holder shall be deemed to be the holder
of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder.

     

    As soon
as practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates for the Warrant Stock
issuable upon such exercise, registered in the name of the Holder.  If
this Warrant should be exercised in part only, the Company shall, upon surrender
of this Warrant for cancellation, execute and deliver a new Warrant evidencing
the right of the Holder to purchase the balance of the Warrant Stock subject to
purchase hereunder.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.           Transfer of
Warrant.  Any Warrants issued upon the transfer or exercise in
part of this Warrant shall be numbered and shall be registered in a warrant
register (the “Warrant Register”) as they are issued.  The Company
shall be entitled to treat the registered holder of any Warrant on the Warrant
Register as the owner in fact thereof for all purposes and shall not be bound to
recognize any equitable or other claim to or interest in such Warrant on the
part of any other person.  This Warrant shall be transferable on the
books of the Company only upon delivery hereof with the Form of Assignment at
the attached duly completed and executed by the Holder or by his or its duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer.  In all cases of
transfer by an attorney, executor, administrator, guardian or other legal
representative, duly authenticated evidence of his or its authority shall be
produced.  Upon any registration of transfer, the Company shall
deliver a new Warrant to the person entitled thereto.  This Warrant
may be exchanged, at the option of the Holder hereof, for another Warrant, or
other Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of shares of Warrant Stock, upon
surrender to the Company or its duly authorized agent. Notwithstanding the
foregoing, the Company shall have no obligation to cause this Warrant to be
transferred on its books to any person, or Warrant Stock to be issued, if, in
the opinion of counsel to the Company, such transfer or issuance does not comply
with the provisions of the Act and the rules and regulations thereunder, and any
applicable state securities laws (“Blue Sky Laws”).

     

    4.           Exercise
Price.  Subject to adjustment as set forth in Section 6 hereof,
the exercise price per share of Warrant Stock (the “Exercise Price”) shall be
$5.00.

     

    5.           Reservation of
Shares.  The Company will at all times reserve for issuance and
delivery all shares of Common Stock issuable upon exercise of this
Warrant.  All such shares shall be duly authorized and, if issued in
compliance with the terms of this Agreement, shall be validly issued, fully paid
and non-assessable.  No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this
Warrant.  In lieu of any fractional shares or scrip, the Company shall
pay the Holder an amount equal to the applicable Exercise Price multiplied by
such fraction of a share otherwise called for upon any exercise of this
Warrant.

     

    6.           Adjustments.

     

    (a)           Capital
Adjustments.  In case the Company shall at any time after the
date this Warrant is issued: (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then, in each case, the Exercise Price in effect, and the
number of shares of Warrant Stock, at the time of the record date for such
dividend or of the effective date of such subdivision or combination, shall be
proportionately adjusted so that the holders of the Warrant shall be entitled to
receive the aggregate number and kind of shares, for the same aggregate Exercise
Price as in effect immediately prior to such dividend, subdivision or
combination, which, if such Warrants had been exercised immediately prior to
such time, such holders would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, or combination.  Such
adjustment shall be made successively whenever any event listed above shall
occur.  Any adjustment under this paragraph shall become effective at
the close of business on the date the dividend, subdivision or combination
becomes effective.

     

    (b) Mergers, Consolidations or
Sale of Assets.  If the Company is a party to a reorganization
(other than as provided for herein), or a merger or consolidation with or into
another corporation, or the sale of the Company’s properties and assets as, or
substantially as, an entirety to any other person, then, as a part of such
transaction, lawful provision shall be made so that this Warrant shall pertain
and apply to the securities and/or other property to which the holder of the
number of shares of Common Stock of the Company then covered by this Warrant
would have been entitled had this Warrant been exercised in whole immediately
prior to the effective date of such reorganization, merger, consolidation or
sale.  In any such case, appropriate adjustment shall be made in the
application of the provisions of this Warrant with respect to the rights and
interests of the Holder after the reorganization, merger, consolidation or sale
to the end that the provisions of this Warrant shall be applicable after that
event, as near as reasonably may be, in relation to any securities or other
property deliverable after that event upon exercise of this
Warrant.  Any such adjustment shall be made by and set forth in a
supplemental agreement between the Company, or any successor thereto, and the
Holder and shall for all purposes hereof conclusively be deemed to be an
appropriate adjustment.  The Company shall not effect any such
reorganization, merger, consolidation or sale unless upon or prior to the
consummation thereof the successor corporation, or if the Company shall be the
surviving corporation and is not the issuer of the shares of stock or other
securities or property to be delivered to holders of shares of the Common Stock
outstanding at the effective time thereof, then such issuer, shall assume by
written instrument the obligation to deliver to the Holder such shares of stock,
securities, cash or other property as the Holder shall be entitled to purchase
in accordance with the foregoing provisions.

     

    (c) Notice to Holder of
Adjustment.  Whenever the number of shares of Warrant Stock or
the Exercise Price is adjusted as herein provided, the Company shall cause to be
mailed to the Holder a notice (i) stating that the number of shares of Warrant
Stock have been adjusted, (ii) setting forth the adjusted number of shares of
Warrant Stock, (iii) the Exercise Price, as adjusted, and (iv) showing in
reasonable detail the computations and the facts, including the amount of
consideration received or deemed to have been received by the Company, upon
which such adjustments are based.

     

    (d) De
minimus Adjustments.  All calculations under this Section 6 shall be
made to the nearest cent or to the nearest share, as the case may be; provided,
however that, no adjustment in the Exercise Price shall be required if such
adjustment is less than $.01; and provided, further, that any adjustments which
by reason of this Section 6 are not required to be made shall be carried forward
and taken into account in any subsequent adjustment.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    7.           Securities
Law Matters; Restrictions on Transfer.

     

    (a) Investment Intent
Only. This
Warrant will be acquired for Holder’s own account, for investment and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act of 1933, as amended (the
“Securities Act”).  Holder has no present intention of selling,
granting any participation or interest in, or otherwise distributing,
transferring or disposing of this Warrant.

     

    (b) Accredited
Holder.  Holder (a) is an “Accredited Investor” as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act, and
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of such Holder’s prospective
investment in the Warrant; (b) has the ability to bear the economic risks of
such Holder’s prospective investment, including a complete loss of Holder’s
investment in the Warrant; (c) has not been offered the Warrant by any form of
advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any such media; (d)
has had an opportunity to ask questions and receive answers from representatives
of the Company regarding the terms and conditions of the Warrant and the
condition of the Company’s business, including, without limitation, its
financial condition; and (e) acknowledges that Holder has conducted its own due
diligence with respect to the Company, the Warrant and any other matter which
Holder believes to be material to a decision to lend and further acknowledges
that Holder is making its investment decision based on this due
diligence.

     

    (c) Compliance with
Laws.  Holder acknowledges compliance with the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, also known as the “USA PATRIOT
Act.”  Additionally, Holder represents that neither it nor any of its
principal owners, partners, members, directors or officers are included on: (i)
the Office of Foreign Assets Control list of foreign nations, organizations and
individuals subject to economic and trade sanctions, based on United States
foreign policy and national security goals; (ii) Executive Order 13224, which
sets forth a list of individuals and groups with whom United States persons are
prohibited from doing business because such individuals and groups have been
identified as terrorists or persons who support terrorism or (iii) any other
watch list issued by any governmental authority, including the Securities and
Exchange Commission.

     

    (d) No Registration;
Legend.  Holder acknowledges that (a) neither the Warrant nor
any securities obtainable upon conversion or payment thereof have been
registered under the Securities Act or the securities laws of any state or other
jurisdiction in reliance upon exemptions from such registration requirements for
non-public offerings and (b) the Company is under no obligation to register
the Warrant or securities obtainable upon exercise hereof under the Securities
Act or any securities laws of any state or take any action to make any exemption
from such registration provisions available.  Such Holder acknowledges
the Warrant and any securities obtainable upon exercise hereof must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available.  Holder understands
that no public market now exists for any of the securities issued by the Company
hereunder and that there is no assurance that a public market will ever exist
for such securities.  Holder agrees to the imprinting, so long as
required by law, of a legend on this Warrant and the Warrant Stock should the
Warrant be exercised in the following form or one similar to it.

     

    THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE
PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED BY
THE REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN RELIANCE ON
STATUTORY EXEMPTIONS UNDER THE SECURITIES ACT, AND STATUTORY EXEMPTIONS UNDER
APPLICABLE STATE SECURITIES LAWS.  THESE SECURITIES MAY NOT BE SOLD,
PLEDGED, TRANSFERRED OR ASSIGNED, EXCEPT IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER;
AND IN THE CASE OF AN EXEMPTION, ONLY IF THE CORPORATION HAS RECEIVED AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION OF ANY SUCH SECURITIES.

     

    8.           Notices.   All
notices required hereunder must be in writing and shall be deemed given when
sent by facsimile, delivered by nationally recognized overnight courier service,
delivered personally or within three days after mailing when mailed by certified
or registered mail, return receipt requested, if to the Company, at Omnimmune
Holdings, Inc., 4600 Post Oak Place, Suite 352, Houston, Texas 77027, Attention:
Harris A. Lichtenstein, Ph.D., Esq., Chief Executive Officer, and if to the
Holder, at the address for the registered Holder as it appears on the books of
the Company, or at such other address of which the Company or Holder has been
advised by notice hereunder.

     

    9.           Rights as a
Shareholder.   The Holder shall have no rights as a
shareholder with respect to any shares covered by this Warrant until the date of
issuance of such shares.

     

    10.           Lost or Destroyed
Warrant.   Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, and upon surrender and cancellation of this
Warrant, if mutilated, the Company shall execute and deliver a new Warrant of
like tenor and date.  The Holder agrees with the Company that this
Warrant is issued, and all the rights hereunder shall be held subject to, all of
the conditions, limitations and provisions set forth herein.

     

    11.           Applicable Law.  The
Warrant is issued under and shall for all purposes be governed by and construed
in accordance with the laws of the State of Delaware, without regard to
conflicts of law principles.

     

    [Signatures
begin on following page.]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN WITNESS WHEREOF, the
Company has caused this Warrant to be signed by the duly authorized undersigned
officer, in the name and on behalf of the Company, as of the day and year first
above written.

    


    COMPANY:

    


    Omnimmune
Holdings, Inc.

    


     

    


     

    By:           _______________________________

     

    Name:___________________________

    Title:____________________________

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    NOTICE
OF EXERCISE

    


    (To be
signed only on exercise of Warrant)

    


    


    TO:  OMNIMMUNE
HOLDINGS, INC.

    


    


    The undersigned, the holder of the a
Warrant dated _______ to purchase _________ shares of common stock of Omnimmune
Holdings, Inc., hereby irrevocably elects to exercise such Warrant for, and to
receive thereunder _________* shares of common stock of Omnimmune Holdings, Inc.
[check as applicable]:

    


    _____ by
cashless exercise; or

     

    _____ by
tendering payment herewith in the amount of
$                                                                                                                     

     

    in
accordance with the terms thereof, and requests that certificates for such
securities be issued in the name of, and delivered to:

     

    Name: __________________________                               

     

    Address:
________________________

     

    _______________________________ 

     

    


     

    Social
Security or Tax Identification
Number:                                                                                                           

     

    and, if such number of shares of
Warrant Stock shall not be all the shares of Warrant Stock covered by the within
Warrant, that a new Warrant for the balance of the Warrant Stock covered by the
within Warrant be registered in the name of, and delivered to, the undersigned
at the address stated below.

     

     

    Dated:________________________                            Name:___________________________

    


     

    Address:______________________

     

    _____________________________

     

    
 

    Social
Security or Tax Identification Number:___________________________

     

    Signature:______________________________

    (Signature
must conform in all respects to name of Holder as specified on the face of the
Warrant)

    


    


    *Insert
the number of shares of Warrant Stock as to which the Warrant is being
exercised.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    WARRANT
ASSIGNMENT

    


     

    (To be
executed by the registered holder if such holder desires to transfer the
attached Warrant)

     

    FOR VALUE
RECEIVED, ___________ hereby sells, assigns and transfers unto:

     

    Name: _________________________                               

     

    Address:                                                     


     

    ______________________________

     

    


     

    Social
Security or Tax Identification Number _____________________

     

    


     

    a Warrant
to purchase ______ shares of Common Stock of Omnimmune Holdings, Inc. (the
“Company”), together with all right, title, and interest therein, and does
hereby irrevocably constitute and appoint _______________ attorney to transfer
such Warrant on the books of the Company, with full power of
substitution.

     

    Dated:
___________________

     

    Name:___________________________

     

    Address:_________________________

     

    ________________________________

     

    


     

    


     

    Social
Security or Tax Identification Number_____________________

     

    


     

    Signature:___________________________

     

    NOTE:  The
above signature should correspond exactly with the name on the first page of
this Warrant.